Affirmed and Memorandum Opinion filed January 17, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-04-00976-CR
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MICHAEL ATKINSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 968,787
M E M O R A N D U M O P I N I O N
A jury found appellant Michael Atkinson guilty of aggravated assault and assessed punishment at fifteen years= confinement in the Texas Department of Criminal Justice, Institutional Division.[1] In seven issues, appellant challenges evidentiary rulings and the legal and factual sufficiency of the evidence. We affirm.
Factual and Procedural Background
Appellant was indicted for having Aintentionally and knowingly cause[d] serious bodily injury to Bob Ballard . . . by striking [Ballard] with his hand.@ Following appellant=s not guilty plea, trial was to a jury. Three witnesses testified for the State: Ballard, Officer Tim Quimby, and Dr. Austin Orette.
Ballard testified he performed maintenance work at the Pont Alba Apartments. On the night of the assault, he was working outside on plumbing at the apartment complex when he observed appellant sitting in the passenger seat of a car, driven by a woman. As appellant and the woman were getting out of the car, Ballard told them they needed to move the car because it was blocking the entrance gate. Both appellant and the woman appeared to be intoxicated and were Alaughing and carrying on.@
Ballard entered the business office and retrieved his cellular telephone and additional tools. When Ballard came back outside, he saw appellant knocking on the door of an apartment and yelling for a person named Pedro. The woman was walking rapidly back to her car and appeared frustrated. Ballard followed her to get her license plate number and called 911 from his cellular telephone. As Ballard was walking toward the car, he was struck from behind and fell to the ground. He rolled over and saw appellant. As Ballard was trying to get to his feet, appellant struck Ballard in the face and chest with his closed fists. Ballard also testified appellant was kicking at him, striking his chest and face. At one point, Ballard felt his jaw Afold and drop.@ According to Ballard, appellant bit Ballard on the bridge of his nose, his arm, and thigh. Ballard struck appellant with his elbows. At some point during the assault, appellant realized the woman had left and asked Ballard for the keys to Ballard=s car. Ballard threw them over the fence.
Ballard subsequently had surgery on his jaw. His jaw was wired shut for several days after the surgery. At the time of trial, he still had pins in his jaw and was still continuing to have work done on his jaw.
In response to questions on cross-examination, Ballard testified he had never served in Vietnam or been in the military service. He also testified he took methadone for chronic back pain. He denied telling anyone he had been kicked from behind.
Officer Quimby went to the apartment complex in response to a dispatch informing him there was an intoxicated person at the complex causing a disturbance. After he arrived, he heard a person yelling for help, ran toward the noise, and observed appellant on his knees straddling Ballard and repeatedly striking him with his closed fists. Quimby heard appellant say he was going to cut Ballard with his knife. Quimby drew his weapon and ordered appellant to get off Ballard. Appellant seemed extremely intoxicated and had a strong odor of alcohol. Quimby observed the left side of Ballard=s face was completely caved in, and Ballard had blood on his shirt and face, and bite marks on his arm. Appellant had minor scratch marks and red marks on his face.
On cross-examination, Quimby testified several officers searched the area. They did not find a cellular telephone, knife, or any tools. They did find keys on the other side of the fence. In response to the question of whether a bite mark on the side of the victim=s arm could mean someone was trying to bite his way out of a chokehold, Quimby testified, AIt could be or it could be that it just happens to be where the defendant bit him at.@
On the night of the assault, Dr. Orette, an emergency room physician, observed Ballard had multiple fractures of the jawbones, treated him for pain, and referred him to a specialist for surgery on his jaws. Without surgery, Ballard would have suffered from a facial deformity, would have been unable to chew properly, and might have experienced difficulty talking. Referring to Ballard=s medical records related to the surgery, Orette testified the surgery involved cutting Ballard=s jaw, inserting a metal plate on one side and a screw on the other. According to Orette, Ballard could function normally A[o]nce he=s healed and gets over the soft diet and all that.@ Orette testified complete healing required four to six weeks, but there could be residual pain and arthritis might develop in the mandible joint.
Orette testified Ballard reported he had been kicked before being thrown to the ground. On cross-examination, Orette testified the records from the hospital where Ballard had surgery indicated (1) Ballard had reported having gunshot wounds from the Vietnam war, (2) was on methadone and interferon therapy, and (3) had Hepatitis C. Orette stated some people use methadone as an analgesic and others use it to wean themselves from an addiction to opiates. Appellant also attempted to elicit Orette=s opinion regarding the implications of the bite marks on Ballard=s arms, and the following transpired:
Q [By defense counsel] In your experience in the emergency room, have you ever seen bites on the inside of somebody=s arm from a fight?
A Oh, yeah. I=ve seen fights. I=ve seen bites, I mean.
Q Is that usually consistent with maybe somebody having somebody in a chokehold?
[By the prosecutor]: Objection. Calls for speculation on his part.
THE COURT: Sustained.
Q [By defense counsel] In your opinion, if that is indeed a bite mark on Mr. Ballard,=s arm, could that be consistent with his arm having someone in a chokehold?
[By the Prosecutor]: Objection. Calls for speculation.
THE COURT: Sustained.
Appellant did not testify at the guilt phase. The jury found appellant guilty of aggravated assault as charged in the indictment.
Discussion
I. Cross-Examination of Dr. Orette
In his first point of error, appellant contends the trial court committed reversible error when it sustained the state=s objections to appellant=s cross-examination of Dr. Orette, the emergency room physician who first treated Ballard. Appellant sought to elicit Orette=s opinion on whether the bite marks on Ballard=s arms were consistent with Ballard=s having appellant in a choke hold. The state twice objected on the ground the questions called for speculation, and the trial court sustained both objections.
The state contends appellant did not preserve error in exclusion of the testimony. We agree.
An appellant may not urge error in the exclusion of evidence unless he perfected an offer of proof or a bill of exceptions. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999); see Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2), (b). Appellant has done neither. Absent a showing of what the excluded testimony would have been, or an offer of a statement concerning what the excluded evidence would show, an appellant presents nothing for review. Guidry, 9 S.W.3d at 153.
In the present case, however, appellant contends no offer of proof is necessary because the substance of the excluded evidence is apparent from the context. See Tex. R. Evid. 103(a)(2); Garza v. State, 846 S.W.2d 936, 939 (Tex. App.CHouston [1st Dist.] 1993, pet. ref=d). Specifically, appellant contends, A[I]t is apparent that the doctor would have testified that the bite wounds found on the complainant=s arm were consistent with the complainant attempting to strangle the appellant.@ Although the substance of the question is apparent, the substance of Orette=s answer is not. See Johnson v. State, 925 S.W.2d 745, 749 (Tex. App.CFort Worth 1996, pet. ref=d) (citing Garza, 846 S.W.2d at 939, and holding that, although the substance of the question asked was apparent, as a result of defendant=s failure to provide appellate court with any offer indicating witness=s response, substance of evidence was not before the court). Appellant simply assumes Orette would have answered in a manner favorable to the defense. Given Orette=s reluctance to agree with appellant=s proffered causes of Ballard=s other injuries, we do not so assume.[2]
Because appellant made no offer of proof and the substance of Orette=s answer is not apparent, appellant has waived any error. See Garza, 846 S.W.2d at 939. Accordingly, we overrule this point. See id.
II. Legal and Factual Sufficiency of the Evidence
A. Standard of Review
In issues two through seven, appellant contends the evidence is legally and factually insufficient to sustain his conviction for aggravated assault. In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In conducting this analysis, we may not reweigh the evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
The standard for a factual sufficiency review requires the reviewing court to provide a neutral review. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004). Even if we disagree with the verdict, our factual sufficiency review must be appropriately deferential to avoid substituting our judgment for that of the fact finder. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). We will not deem the evidence factually insufficient unless (1) it is too weak, when considered by itself, to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484B85; see Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In conducting a factual sufficiency review, we must consider the evidence the appellant claims undermines the verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
B. Analysis
1. Self-Defense
In appellant=s sixth and seventh points of error, he argues the evidence was legally and factually insufficient because Athe state never rebutted [his] assertion of self-defense beyond a reasonable doubt.@ A defendant bears the burden of producing some evidence in support of a claim of self‑defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).[3] Once the defendant produces such evidence, the State bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913B14. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913. There is an implicit finding against the defensive theory when a jury finds the defendant guilty. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.
In reviewing a challenge to the legal sufficiency of the evidence to support the rejection of a self‑defense claim, we view the evidence in the light most favorable to the prosecution to determine if any rational trier of fact would have found beyond a reasonable doubt the essential elements of the offense and against the appellant=s self‑defense claim. Saxton, 804 S.W.2d at 914. In reviewing a challenge to the factual sufficiency of the evidence to support the rejection of self‑defense, we review all the evidence in a neutral light and ask whether the State=s evidence taken alone is too weak to support the finding of guilt beyond a reasonable doubt and whether the evidence supporting the defense is strong enough that the rejection of the self-defense claim does not meet the beyond‑the‑reasonable doubt standard. See Zuniga, 144 S.W.3d at 484B85; Zuliani, 97 S.W.3d at 595; see also Roy v. State, 161 S.W.3d 30, 36B37 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (harmonizing articulation of standards in Zuniga and Zuliani).
A person commits an aggravated assault if he Aintentionally, knowingly, or recklessly@ causes Aserious bodily injury to another.@ Tex. Pen. Code Ann. '' 22.01(a)(1), .02(a)(1) (Vernon Supp. 2005). With certain exceptions, Aa person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.@ Tex. Pen. Code Ann. ' 9.31(a) (Vernon 2003).[4]
Ballard, the complainant in the present case, testified he was calling 911 on his cellular telephone when he was struck from behind on the right-hand side of his head. Ballard fell to the ground, landing on his arm and the side of his face. He turned around to see appellant. As Ballard was trying to get to his feet, appellant struck Ballard in the face with his closed fist. Appellant was punching Ballard with both fists. Ballard tried several times to get up, but never got control of his balance. When Officer Quimby arrived, appellant was straddling Ballard and using both fists to strike Ballard in the face with a repetitive motion. It did not appear to Quimby to be a two-party fight. Quimby observed the left side of Ballard=s face was completely caved in. Quimby also observed marks on Ballard=s nose and two bite marks on his arm. According to Quimby, appellant had minor scratches and red marks in his facial area. Quimby testified without objection Ballard was able to clear up what had happened and Quimby found Ballard to be truthful. On cross-examination, Quimby opined a bite mark on a person=s arm could mean a second person was trying to bite his way out of choke hold or could just happen to be where the second person bit the first person.
Having reviewed the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact would have found beyond a reasonable doubt the essential elements of the offense and against the appellant=s self‑defense claim. See Saxton, 804 S.W.2d at 914. Having reviewed all the evidence in a neutral light, we also conclude the State=s evidence taken alone is not too weak to support the finding of guilt beyond a reasonable doubt, and the evidence supporting the defense is not so strong that the rejection of the self-defense claim does not meet the beyond‑the‑reasonable doubt standard. See Zuniga, 144 S.W.3d at 484B85.
We overrule appellant=s sixth and seventh points of error.
2. Serious Bodily Injury
In appellant=s forth and fifth points of error, he claims the evidence is legally and factually insufficient to support the aggravated assault conviction because the complainant=s injuries did not constitute serious bodily injury. Appellant concedes there is some evidence of bodily injury but argues the evidence is insufficient to prove he caused Aserious bodily injury.@ We disagree.
To secure a conviction for aggravated assault according to the jury charge in this case, the State was required to prove the defendant committed an assault and caused serious bodily injury to another. Tex. Pen. Code Ann. ' 22.02(a)(1). The Texas Penal Code defines Aserious bodily injury@ as Abodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@ Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon Supp. 2005). This definition stands in contrast to Abodily injury,@ which is required to maintain a conviction for assault. See Tex. Pen. Code Ann. '22.01(a)(1). Bodily injury is defined as Aphysical pain, illness, or any impairment of physical condition.@ Tex. Pen. Code Ann. '1.07(a)(8). Thus, Aserious bodily injury@ is bodily injury plus one or more of the following effects: (1) a substantial risk of death; (2) death; (3) serious permanent disfigurement; (4) protracted loss of the function of any bodily member; (5) protracted impairment of the function of any bodily member; (6) protracted loss of the function or any bodily organ; or (7) protracted impairment of the function of any bodily organ. Moore v. State, 739 S.W.2d 347, 355 (Tex. Crim. App. 1987).
Because the penal code provides a different definition for Abodily injury@ than for Aserious bodily injury,@ the Texas Court of Criminal Appeals has instructed us to presume the Texas legislature intended a meaningful difference or distinction between the two. See id. at 349. Whether an injury constitutes Aserious bodily injury@ must be determined on a case-by-case basis. See id. at 352.
One measures the degree of disfigurement by the damage caused by the wound when inflicted, not disfigurement as exacerbated or ameliorated by medical treatment. Brown v. State, 605 S.W.2d 572, 575 (Tex. Crim. App. [Panel Op.] 1980), overruled on other grounds by Hedicke v. State 779 S.W.2d 837, 840 (Tex. Crim. App. 1989). There must be evidence of some significant cosmetic deformity caused by the injury. See Brown, 605 S.W.2d at 575 (testimony that broken nose would cause disfigurement and dysfunction if untreated sufficient to establish serious bodily injury); Moore v. State, 802 S.W.2d 367, 369 (Tex. App.CDallas 1990, pet. ref=d) (sufficient evidence of serious bodily injury when victim=s cheek bone was fractured in three places; surgery necessary to prevent significant cosmetic deformity).
In the present case, the evidence was legally and factually sufficient to establish serious permanent disfigurement. The evidence indicates Ballard=s (the complainant=s) right jaw sustained fractures in different places, and the left jaw suffered one straight fracture. The doctor testified Ballard=s jaw would not have healed property without surgery. Further, he testified without surgery, Ballard would have subsequently developed an overbite creating facial deformity and making chewing difficult. Thus, Ballard=s fractured jaw is sufficient to constitute serious permanent disfigurement.
Having viewed all of the evidence in the light most favorable to the prosecution, we hold the evidence is legally sufficient for any rational trier of fact to have found Ballard=s injuries constituted serious bodily injury. Having reviewed all the evidence in a neutral light, we also conclude the State=s evidence taken alone is not too weak to support a finding beyond a reasonable doubt of serious bodily injury nor is the contrary evidence so strong the beyond‑the‑reasonable doubt standard could not have been met. See Zuniga, 144 S.W.3d at 484B85.
We overrule appellant=s fourth and fifth points of error.
3. Complainant=s Credibility
In appellant=s second and third points of error he claims the evidence is legally and factually insufficient to support his conviction of aggravated assault because Ballard=s testimony is not credible. In conducting a legal sufficiency review, we do not engage in a second evaluation of the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).
In a factual sufficiency analysis, we can consider only those few matters bearing on credibility that we can fully determine from a cold appellate record. Johnson, 23 S.W.3d at 8. This approach occasionally permits some credibility assessment but usually requires deference to the jury=s conclusion based on matters beyond the scope of the appellate court=s legitimate concern. Id. Unless the available record clearly reveals a different result is appropriate, we must defer to the jury=s determination about what weight to give contradictory testimonial evidence. Id. This deference is required because resolution of the credibility issues often turns on an evaluation of credibility and demeanor, and those jurors were in attendance when the testimony was delivered. Id. The evidence is then accorded the appropriate consideration by the reviewing court in the context of its overall analysis of the relevant evidence. Id. at 8B9.
Appellant argues Ballard=s testimony is not credible because the evidence shows the following inconsistencies: (1) Ballard denied being in the military or ever serving in Vietnam but reported to the doctors he had gunshot wounds from this time, (2) Ballard denied being kicked from behind, but reported to a treating doctor he had been kicked from behind, and (3) Ballard testified he had tools in his possession when the attack occurred, but police found no tools at the scene. Appellant also argues Ballard=s testimony is not credible because of his prescription drug use at the time of the incident.
It is within the sole province of the jury to reconcile conflicts, contradictions, and inconsistencies in the evidence. Tran v. State, Nos. 14‑03‑01372‑CR, 14‑03‑01373‑CR, 14‑03‑01374‑CR, 2005 WL 2334828, at *7 (Tex. App.CHouston [14th Dist.] June 2, 2005, pet. ref=d) (citing Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982)). The jury is also the judge of the credibility of the witnesses, and is free to believe or disbelieve any portion of a witness=s testimony. Id. (citing Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)). Considering all the evidence in the case, and deferring to the jury=s role as sole judge of the weight and credibility given to the witnesses= testimony, we are unable to conclude the aspects of Ballard=s testimony to which appellant points render the evidence factually insufficient. Cf. id. (concluding evidence was factually sufficient even though defendant contended (1) neither the victim nor the outcry witness described the alleged incidents of sexual assault in Agraphic detail,@ (2) testimony of the victim and the outcry witness conflicted regarding the location of the incidents of sexual assault, (3) victim=s father testified victim was untruthful, needed great deal of attention, and had falsely accused him of abuse, and (4) regarding allegations in one cause number, victim could say only it was Aprobable@ incident occurred in bedroom and she was Aprobably@ asleep when defendant Aprobably@ entered her bedroom).
We overrule appellant=s second and third points of error.
Conclusion
Having overruled appellant=s seven points of error, we affirm the judgment of conviction.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed January 17, 2006.
Panel consists of Chief Justice Hedges and Justices Yates and Anderson.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] See Tex. Pen. Code Ann. ' 22.02(a)(1) (Vernon Supp. 2005).
[2] When asked whether the injury to the jaw was consistent with Ballard=s having fallen to the ground and hit his chin on the sidewalk, Orette answered, AYou could fracture your jaw by any mechanism.@ When asked whether the scrapes on the left side of Ballard=s face were road rash, Orette answered, AIf I have to make a professional opinion on this, that would not be like road friction. That would be like finger claw.@ When asked whether the injuries to the top of Ballard=s forehead could have been caused by the head=s being pushed to the ground on the sidewalk, Orette answered, AAll I can see here is somebody with some trauma. Any mechanism could have been involved with this.@
[3] Appellant contends the burden was on the State to rebut his defense beyond a reasonable doubt. In support, he cites Stone v. State, 751 S.W.2d 579 (Tex. App.CHouston [1st Dist.] 1988, pet. ref=d). In Stone, which predates Saxton and Zuliani, the court addressed a defendant=s objection that the jury charge did not place the burden on the State to disprove the defense of self-defense. The court of appeals explained:
Luck v. State, 588 S.W.2d 371, 375 (Tex. Crim. App. 1979), held that a trial court does not err in overruling a defense objection to the charge: (1) if the charge requires the jury to acquit the defendant if they believe that he was acting in self‑defense or they have a reasonable doubt that he might have been; (2) if the court instructs the jury that the burden of proofCAbeyond a reasonable doubt@Cis on the State; and, (3) if the court instructs the jury on the presumption of innocence. The charge in the instant case satisfied these requirements.
Stone, 751 S.W.2d at 587. Appellant=s interpretation of Stone is too broad and arguably conflicts with Saxton and Zuliani.
[4] Texas Penal Code section 9.31 provides:
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer=s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other=s use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor=s differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer=s (or other person=s) use or attempted use of greater force than necessary.
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.
Tex. Pen. Code Ann. ' 9.31 (Vernon 2003).